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Forum Shifting to Regulate Data Privacy: The Creation and Evolution of EU Data Protection Law
No full textCurrently, the European data protection regime has become one of the most influential legal frameworks regulating data privacy protection and cross-border personal data transfers. Despite a burgeoning body of scholarship on EU data protection law, the questions of why and how the EU adopted this regulatory approach remain understudied. Contrary to conventional wisdom, European data protection regulation is neither preordained by Europe’s historical or cultural legacies, nor simply a result imposed by powerful EU member states out of national economic interests. Instead, this work argues that this legal regime is the result of contentious lawmaking processes aimed at addressing regulatory challenges and altering existing institutional rules. Drawing on the analytical lens of forum-shifting from international relations scholarship, it provides a novel explanation for the emergence and evolution of European data protection law, revealing salient power dynamics shaping the legal and policy outcomes. At the core, this article explores how a powerful coalition of privacy-focused institutional actors in Europe leveraged asymmetrical power resources to impose their policy preferences at the Union level, and deployed forum-shifting as a lawmaking strategy to create, reform, and develop EU data privacy standards, thereby profoundly shaping supranational rulemaking. Further, this article also examines the normative and policy implications of these forum-shifting processes for the transatlantic legal frameworks governing personal data transfers from Europe to the U.S. By analyzing the pivotal role of these pan-European rulemaking efforts in shaping EU-U.S. commercial data transfer mechanisms, it delves into the power dynamics underpinning the establishment and iterative development of the transatlantic data governance regime
Probation Without a Home: How Probation Maintains Barriers to Successful Completion While Homeless
No full textFollowing the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. For homeless people, probation is often just a stepping stone to incarceration instead of a turn away from it. Using Illinois as a case study, this Comment demonstrates the way the criminalization of homelessness makes probation especially difficult for those without housing to successfully complete.
There are over 470,000 people on probation in Illinois, compared to just over 27,000 in the Illinois prison population. Illinois does not keep statistics about the number of probationers experiencing homelessness or housing insecurity, so studying the exact impact of homelessness on probation in Illinois is difficult. Studies from other areas of the country show that people who are facing housing insecurity are 36% more likely to unsuccessfully complete probation. Several general probation requirements are difficult for homeless people to follow. Requirements such as reporting to parole officers, avoiding interactions with law enforcement, not associating with convicted felons, and regularly appearing for court dates present unique problems for people without homes.
To help alleviate the inequalities within the system, probation departments should begin collecting data on the housing status of probationers, create dedicated homeless programs within probation offices, work on inter-agency and resource collaboration for homeless services, end incarceration for probation violations, and invest in permanent supportive housing
What on Earth Is a Burden on Interstate Commerce?
Full text linkWhat is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court to subject state laws to a cost–benefit test would preserve a kind of judicial neutrality that a bald evaluative assessment would not. But cost–benefit analysis isn’t nearly as neutral as its proponents assume. Indeed, it involves a controversial, and arguably misguided, evaluative outlook that we should be hesitant to constitutionalize under the Commerce Clause. Still, I claim that there may be a limited role for Pike balancing, or something like it, in a narrow range of cases involving functional kinds with an uncontroversial telos such as trains and trucks. But even there, we should avoid the unhelpful abstraction of a “burden on interstate commerce.” Could Pike be defended as a proxy for other constitutional values? I argue that Pike fails even that test. Thus, it is far past time to retire Pike
Why Explaining the Impact of Excluding Preexisting Conditions From a Health Insurance Policy Is So Difficult: Experimental Evidence and Policy Implications
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Climate Exceptionalism in Court
Full text linkAcross a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”
This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, parties (and some courts) make various arguments about why federal courts should deny standing to plaintiffs in cases related to climate change. These arguments tend to track three themes: that climate change is too general, too uncertain, and too political an issue to support jurisdiction. Second, defendants offer a range of novel and boundary-pushing arguments about federal jurisdiction to oust state courts of jurisdiction over climate cases with the ultimate goal of getting federal courts to dismiss.
This Article then offers the normative case against climate jurisdiction exceptionalism as practiced in the United States as well as in some foreign courts. We show that arguments for climate jurisdiction exceptionalism run counter to settled notions of access to justice, federalism, and the separation of powers—and they do so without providing any justification for such exceptional treatment. We further show that exceptional doctrine cannot be limited to any small, discernible category of cases but instead is likely to spill over into the law of jurisdiction more broadly. We also suggest that a particularly pernicious version of climate jurisdiction exceptionalism exists when judges and parties deny that they are being exceptional. This hidden exceptionalism has the same problems as more public exceptionalism while also undermining accountability and risking further harm to the rule of law
Who Holds the Hammer? A Private Ordering Framework as the Key to Carpenter’s Privacy Puzzle
Full text linkThis Note builds on the Supreme Court’s reasoning in Carpenter v. United States, suggesting that its technology-specific approach may be insufficiently elastic to address the complexities of modern data privacy. Through an analysis of several exemplars, this Note advocates for a private ordering framework—where data collectors respond to consumer expectations of privacy through self-regulating practices—as a more adaptive and effective means of safeguarding digital privacy. This approach preserves the third-party doctrine while reducing the burden on courts to draw technological boundaries in a rapidly evolving digital environment
Juvenile Drug Offenses: Rethinking Criminal Justice Approaches and Intervention Strategies
No full textJuveniles, whose offending nature fundamentally differs from that of adults, should not be subjected to the traditional criminal justice system for drug offenses. Juvenile drug offenders warrant heightened attention due to their diminished capacity for reasoned judgment, increased susceptibility to the effects of drugs, the profound impact that criminal drug charges have on their future, and the possible presence of Substance Use Disorder. This Comment breaks down ways in which the U.S. has handled, and currently handles, juvenile drug offenders. I will also explore the long-term and short-term effects of drug convictions for juveniles, the issue of culpability and susceptibility to deterrence efforts, while placing an emphasis on the role of addiction. This Comment compares approaches taken by different U.S. jurisdictions, while also analyzing how other countries treat juvenile drug offenders, to adequately evaluate effective and appropriate intervention strategies. The analysis concludes by synthesizing the salient features of each approach in an effort to guide policy decisions surrounding the implementation of intervention strategies for juvenile drug offenders
Unregulated and Unacceptable: Facial Recognition Technology\u27s History, Privacy Concerns, and Impact on Society
No full textThis Note provides a general review of the current state of Facial Recognition Technology (FRT), including Illinois state regulation and past federal regulation attempts. This Note asserts that even as datasets become more diverse and “fairer,” FRT may still have discriminatory impacts on minority populations, as evidenced by a few highlighted examples that focus on race and gender. This Note suggests that one option to mitigate these dangers is to implement national regulations for its use. Ultimately, this Note suggests what a federal regulation might look like, informed by the societal impacts discussion.
After an introduction in Section I, Section II provides a brief overview of the history of FRT, how it works, and where it is used. Next, Section III dives into the Illinois Biometric Information Privacy Act (BIPA), focusing on what distinguishes it from the plaintiff’s perspective and recent amendments to the Act. To expand on this discussion, Section IV discusses two case illustrations that exemplify what BIPA litigation should look like and the impact that these court holdings have had on the statute. Section V looks at the past and current federal FRT regulation, including past failed federal enactment attempts. Finally, Section VI discusses the societal impacts of FRT and the benefits of a united federal regulatory system. This Note concludes with an idealized federal regulation suggestion, grounded in BIPA and the American Data Privacy and Protection Act.
The focus of this Note is to provide a foundational understanding of FRT and ultimately provide an explanation for how the information fed into FRT models is analyzed. By looking through the lens of BIPA and homing in on the inner workings of a single state’s statute, this Note focuses on a few of the current rights and regulations in place and how they are used to protect against the misappropriation of biometric data. As the Note shifts toward a discussion about the societal impacts of FRT, the focus is on the discriminatory outcomes as a main danger of FRT.
The introductory information laid before the societal implications discussion helps to highlight how the impacts discussed are a direct result of FRT systems and current regulations. This Note contributes to the current discussion about potential bias in face surveillance and biometrics technology, seeking to fill gaps in the current literature by using BIPA as a lens for viewing current regulations, combined with a societal impact analysis. This Note presents an idealistic suggestion for federal regulation that would harmonize national usage and protections for FRT and biometrics in the future
Peeping Town: Drone Surveillance and the Exclusionary Rule in Long Lake Township v. Maxon
Full text linkFor years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan Supreme Court, which recently declined to address whether the drone surveillance constituted a search. Instead, it held that the exclusionary rule––a remedial device that bars the use of evidence obtained in violation of the Fourth Amendment from certain proceedings––did not apply. Thus, even if the evidence was collected in violation of the resident’s Fourth Amendment rights, the evidence was deemed admissible in the zoning proceeding. This Comment examines Long Lake Township v. Maxon, arguing that the Michigan Supreme Court erred in both its exclusionary rule analysis and its failure to decide the search issue. It also explores the decision’s nationwide implications